An Optional Streamlined Method of Will Execution Went Into Effect September 1, 2011.
Most wills in Texas are “self-proved,” making them easier to admit to probate following the testator’s death. Up until September 1, 2011, this required the testator and both witnesses to sign the will twice. Last year, the legislature simplified the process.
Unless a will is entirely in the testator’s handwriting, a Texas will must be “attested to” by two witnesses in order to be valid. But if a will only has the signature of the testator and two witnesses, one of those witnesses must still attend the probate hearing following the testator’s death to provide testimony that the will was executed with all of the necessary formalities. If neither witness is available to testify, there are alternative methods of “proving up the will.”
When the “new” Texas Probate Code was enacted in 1955, it included Section 59, which introduced the concept of a “self-proving affidavit” to Texas. After the testator and witnesses sign the will itself, they can then sign an affidavit before a notary swearing to the fact that they all executed the will with the necessary formalities. If this affidavit is attached to the will when it is offered for probate, no “prove-up witness” is required in the absence of a will contest.
This worked great except for one thing. Since there were two different places for the testator and witnesses to sign, it was now possible for one or more of them to sign in one place, but forget to sign in the other. In 1966, the Texas Supreme Court ruled in Boren v. Boren, 402 S.W.2d 728 (Tex. 1966), that if the witnesses signed the self-proving affidavit but forgot to sign the will, the will was invalid. While this seems odd, the court held that the self-proving affidavit was, in effect, a separate document, and since the will itself didn’t have two witnesses (and wasn’t handwritten), it was not executed with the necessary formalities.
It wasn’t until 1991 that the legislature remedied this by amending Section 59. Following that amendment, if a situation like that in the Boren case arose, the witnesses signatures on the self-proving affidavit would be considered the required signatures on the will, but the will would no longer be considered self-proved. While a “prove-up” witness would be required, at least the will could be admitted to probate.
The 2011 Amendment
During the execution ceremony, I often found myself explaining to the clients why it was necessary for them and the witnesses to sign the will twice. The procedure seemed archaic. So prior to the 2009 legislative session, the Real Estate, Probate, and Trust Law Section of the State Bar came up with a proposed amendment that allowed the execution of the will and the self-proving affidavit to be combined, so that everyone signed just once. This wasn’t such a radical a departure from current law -- the Uniform Probate Code, adopted in over twenty states, has contained an optional one-step method for years. Unfortunately, the 2009 bill ran out of time for passage, so this proposal was included in REPTL’s 2011 legislative package that passed. (A similar change applicable to guardianship designations did pass in 2009.)
In addition to streamlining the execution ceremony, this optional method has what I believe is an additional benefit. With the traditional two-step method, I can see the possibility that the testator or witnesses, having signed a will once, might think they’re done and fail to sign the second time (i.e., the Boren situation). But it seems unlikely to me that if a will is prepared for execution with the new one-step method, someone could completely fail to sign the will and yet think they’re done. In other words, I believe (without any scientific evidence at all) to fewer botched will executions.
Nevertheless, anyone who’s still attached to the traditional two-step method may continue to use it. I see no reason to think it will ever be phased out as an option.
If you’d like further information, Attachment 2 to my 2011 legislative update contains the actual statutory language of the revised Section 59. Attachment 10 contains the form for the new one-step method for will executions. You can download a copy of that legislative update from the Resources page.